Jimmie Iles v. State

Opinion issued January 29, 2004

In The

Court of Appeals

For The

First District of Texas

______ ______

NOS. 01-02-01032-CR

01-02-01033-CR

____________

JIMMIE ILES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause Nos. 903749 and 904628

O P I N I O N

Appellant, Jimmie Iles, was charged in two indictments with aggravated

robbery. The indictments included two enhancement paragraphs alleging that

appellant had twice been previously convicted of felony offenses. His counsel filed

motions to suppress his statement, his identification, and the fruits of the arrest. All

three motions were denied by the trial court after a hearing on September 9 and

September 10, 2002.

On September 11, 2002, appellant pleaded guilty to aggravated robbery and

true to the allegations in the enhancement paragraphs with a plea bargain agreement

of 35 years’ confinement in each case. Appellant signed under oath a written waiver

of constitutional rights, agreement to stipulate to evidence, and judicial confession

in both cases. The documents provided, among other things, that appellant waived

any right of appeal if the trial court accepted the plea bargain agreement. The trial

court’s two pages of written admonishments were followed by a list of eight

representations appellant made to the court. Number five was the following:

I waive my right to appeal if the Court accepts the foregoing plea

bargain agreement between the prosecutor and me.

Like the “waiver of constitutional rights, agreement to stipulate to evidence, and

judicial confession,” this document was signed by appellant, his counsel, the

prosecutor, and the trial court.

The trial court proceeded to find appellant guilty of aggravated robbery in

both cases and, following the plea bargain agreement, assessed punishment at

confinement for 35 years.

Appellant’s counsel filed a notice of appeal in each case. The notices

complied with the requirements of former Rule 25.2(b)(3) of the Texas Rules of

Appellate Procedure, in effect at that time, by specifying that the appeal was from

“the denial of his Motion to Suppress.” See Tex. R. App. P. 25.2(b)(3)(B), 948-949

S.W.2d (Texas Cases) LXI, XCVI (Tex. Crim. App. 1997) (amended effective Jan.

1, 2003). The trial court appointed appellate counsel, ordered preparation of the

reporter’s record without expense to appellant, and filed written findings of fact and

conclusions of law concerning the voluntariness of appellant’s statement.

In a single point of error, appellant contends that the trial court erred in

overruling the motions to suppress his statement, his identification, and the fruits of

his arrest. The State argues that the appeals should be dismissed because appellant

waived his right to appeal. Appellant’s counsel did not file a reply to the State’s

brief. We agree with the State.

A waiver of the right to appeal that was made voluntarily, knowingly, and

intelligently is valid and will prevent a defendant from appealing without the consent

of the trial court. Monreal v. State , 99 S.W.3d 615, 617 (Tex. Crim. App. 2003); Ex

parte Tabor , 565 S.W.2d 945, 946 (Tex. Crim. App. 1978); Ex parte Dickey , 543

S.W.2d 99, 100 (Tex. Crim. App. 1976). Our first inquiry, then, is whether

appellant’s waivers of his right to appeal were made voluntarily, knowingly, and

intelligently.

The record indicates that they were. Appellant and his counsel signed a

total of four documents, two in each case, at the time of appellant’s guilty pleas —

all of which included an express waiver of the right to appeal if the trial court

followed the plea agreement. The reporter’s record of the suppression hearing

contains no evidence of any intent to appeal. At the conclusion of the arguments on

the motions, the court simply denied them and there was no further discussion. There

is no reporter’s record of the plea proceedings because, according to the docket

sheets, the presence of a court reporter was waived. As stated above, the notices of

appeal include the handwritten notation that appellant was appealing “the denial of

his Motion to Suppress.” This does not refute the voluntariness of appellant’s

waivers. At best, it is ambiguous. We are not willing to hold — on the basis of this

recitation alone — that appellant’s waivers of his right to appeal were involuntarily,

unknowingly, and unintelligently made.

These appeals are therefore very different from the situation presented in

Alzarka v. State , 90 S.W.3d 321, 323-24 (Tex. Crim. App. 2002). In that case, the

record was replete with references to the defendant’s intent to appeal the denial of her

pretrial motion, although the waiver-of-the-right-to-appeal language was included in

the plea papers that the defendant signed. The Court of Criminal Appeals concluded

that the failure to cross out the waiver language was an oversight, and that the record,

in which the trial judge and the parties “repeatedly made statements agreeing that

appellant would be permitted to appeal,” directly contradicted and rebutted any

presumption raised by the terms of the plea form. Id . We followed the Alzarka case

in Garcia v. State , 95 S.W.3d 522, 524-25 (Tex. App.—Houston [1st Dist.] 2002, no

pet.), because the record clearly showed that the defendant intended to appeal the

denial of his motion to suppress and that the State agreed to it, despite the waiver in

the plea documents.

In the present appeals, by contrast, there is nothing in the clerk’s records or

the reporter’s record that expressly contradicts the validity of the waivers of the right

to appeal. We therefore conclude that appellant’s waivers of the right to appeal were

made voluntarily, knowingly, and intelligently.

Our second inquiry is whether the trial court consented to the appeals

because the trial court’s permission to appeal overrides even a valid waiver of the

right to appeal. Willis v. State , 121 S.W.3d 400, 403 (Tex. Crim. App. 2003). In that

case, the Court of Criminal Appeals explained:

[T]he trial court is in a better position to determine whether the

previously executed waiver of appeal was in fact validly executed

and if there is any arguable merit in appellant’s desire to appeal.

Id .

See also Monreal , 99 S.W.3d at 617 (valid waiver of appeal prevents defendant

from appealing without trial court’s consent); Tabor , 565 S.W.2d at 946 (same);

Dickey , 543 S.W.2d at 100 (same). In the Willis case, the notice of appeal included

a handwritten notation directly above the trial judge’s signature that read, “The trial

court grants permission to appeal.” Willis , 121 S.W.3d at 401 . In Alzarka , 90 S.W.3d

at 323 , the trial judge stated during the recorded plea hearing that the defendant had

permission to appeal. In Galliford v. State , 101 S.W.3d 600, 602-03 (Tex.

App.—Houston [1st Dist.] 2003, pet. ref’d), this Court held that the trial court’s

written order granting permission to appeal rebutted the presumption that appellant

waived the right to appeal.

In the present cases, however, neither the clerk’s nor the reporter’s records

include any permission to appeal by the trial court, and such may not even be implied

from the trial court’s actions.

The actions of the trial court at the time appellant’s

counsel filed the notices of appeal and afterward were to: (1) grant trial counsel’s

motion to withdraw; (2) grant appellant’s request for appointed counsel on appeal and

a free record in response to his pauper’s affidavit; and (3) file findings of fact and

conclusions of law concerning the voluntariness of appellant’s statement. These

actions do not amount to permission to appeal. Once appellant’s counsel filed the

notices of appeal, the district clerk had a mandatory duty to forward them to the

proper appellate court. See In re Washington , 7 S.W.3d 181, 183 (Tex. App.

—Houston [1st Dist.] 1999, orig. proceeding); Tex. R. App. P. 25.2(e); see also

Brown v. State , 53 S.W.3d 734 , 737 n.5 (Tex. App.—Dallas 2001, pet. ref’d). It was

then incumbent on the trial court to appoint counsel and order a free record if it found

that appellant remained indigent, regardless of whether it had granted permission to

appeal. See Douglas v. California , 372 U.S. 353, 357-58 , 83 S. Ct. 814, 816-17

(1963); Griffin v. Illinois , 351 U.S. 12, 19 , 76 S. Ct. 585, 590-91 (1956); Perez v.

State , 4 S.W.3d 305, 307 (Tex. App.—Houston [1st Dist.] 1999) (order) (“This Court,

not any other, retains the power to determine the existence and limits of its

jurisdiction which, in certain cases . . . will require a clerk’s record, a reporter’s

record, and the services of appellate defense counsel.”); see also Lyon v. State , 872

S.W.2d 732, 736 (Tex. Crim. App. 1994) (trial court’s order granting free record did

not constitute implied permission to appeal because record was clear trial court

denied permission to appeal). Finally, the entry of findings of fact and conclusions

of law on the voluntariness of a defendant’s confession is mandated by statute, and

therefore could not be indicative of permission to appeal. Green v. State, 906 S.W.2d

937, 938-40 (Tex. Crim. App. 1995); Tex. Code Crim. Proc. Ann. art. 38.22, § 6

(Vernon Pamph. 2004).

We are not aware of any cases in which an appellant’s waiver of the right

to appeal was held to have been overridden by implied permission to appeal. Even

if implied permission were sufficient, however, we do not find any implied

permission to appeal in the instant cases. To hold otherwise would mean that

virtually any action taken by a trial court after the filing of a notice of appeal, even

those actions mandated by law, would be interpreted as permission to appeal and

would override an appellant’s valid waiver of his right to appeal.

We hold that appellant’s waivers of his right to appeal in the instant cases

were made voluntarily, knowingly, and intelligently. We further hold that the trial

court did not consent to the appeals.

We therefore order the appeals dismissed .

Elsa Alcala

Justice

Panel consists of Justices Nuchia, Alcala, and Hanks.

Publish. Tex. R. App. P. 47.2(b).